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WHOLESALER DIRECTED TO PAY SH48 MILLION TO VEGETABLE OIL SUPPLIER.

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BY SAM ALFAN.

A Judge has directed Dire Dawa wholesalers to pay Sh47.9 million it owes to its supplier, Golden Africa Kenya limited.

Justice David Majanja ruled in favour of Golden Africa Kenya limited after the company sued the distributor over a debt of USD 444,285.44 (Sh47,982,827.52) for goods supplied to the company two years ago.

“I therefore enter judgment for the plaintiff against the defendant for USD 444,285.44 together with interest at court rates from the date of filing suit, that is, 7th November 2019 until payment in full. The plaintiff shall have the costs of the suit” ruled Majanja.

Golden Africa Kenya limited told the court that on various dates between June 2018 and September 2018, it supplied to the (Dire Dawa wholesalers) defendant at its request, consignments of vegetable oil on credit.

It added that despite receiving the consignments, the distributor failed to pay the amount since August 24, 2019.

The parties subsequently entered into a Debt Settlement Agreement dated September 23, 2019 wherein the distributor to pay the amount within 60 days of the agreement.   

“Despite demand and notice of intention to sue, the defendant failed to honour the agreement causing the plaintiff to file this suit” added Golden Africa. The wholesalers did not file its defence.

Before the date fixed for formal proof, Adul Rashid Sharifow, a director of the defendant, filed a Notice of Motion dated July 21, 2020 seeking to be joined as an interested party in his own right and only for purposes of filing and prosecuting the application to set aside judgment.

However, the application came up for hearing and was dismissed on the ground that it was an abuse of the court process as the interested party had no right to set aside the default judgment against a known defendant as he has no cause of action or defence against the plaintiff’s claim.

JIRONGO BID TO QUASH FRAUD CHARGES FLOPS AS SUPREME COURT DECLINES TO HEAR THE CASE

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BY SAM ALFAN.

It is a big blow to former presidential candidate Cyrus Jirongo after failing in his bid to quash claims that he forged a bank cheque to obtain a loan of Sh50 million from Post Bank 28 years ago.

This is after six judges of the Supreme Court led by Chief Justice David Maraga dismissed his appeal after being unsuccessful at the Appellate court, Jirongo was trying to make corrections to his criminal case by seeking to introduce ‘supposed new and fresh evidence’.

“We are perturbed, as we are curious at this strange turn of events where the Petitioner now wants to engage this Court in gerrymandering and cat games in the name of adducing additional evidence in an otherwise straight forward appeal,” Justice Maraga together with Deputy CJ Philomena Mwilu, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaona said.

This means Jirongo criminal fraud case pending at Milimani chief Magistarte courts will now proceed to full hearing.

Jirongo, who was charged in August last year, and later moved to the Supreme Court saying he had obtained documents from among others, the Registrar of Companies, that would be have absolved him of any wrongdoing.

The politician also alleged that the Court of Appeal, which gave the Director of Public Prosecutions the greenlight to charge him with fraud, did not give him a fair hearing.

The politician was accused that with intent to defraud, he induced Post Bank Credit ltd to accept a bank charge for a parcel of land registered in the name of Soy Developers, which he used to obtain an overdraft of Sh50 million for his company Cyber Projects International.

It is further alleged that he forged a bank charge purporting it to be genuine and signed by his former business partner Sammy Kogo and Davy Koech.

The court heard that Jirongo later presented the document to the Bank, claiming it was genuine and signed by the duo.

He is alleged to have committed the offences on September 25, 1992.

The politician was also charged with giving false information to Maxwell Otieno, a police officer that he had paid Sh7 million to son of former President Moi, late Jonathan as balance to acquire Soy Developers ltd. It is alleged that he committed the offence on March 27, 2015, information that would have led to the arrest of Moi.

In 2016, the DPP approved charges against Jirongo but the politician moved to the High Court and obtained orders, stopping the trial.

High Court judge George Odunga later quashed the charges after he argued that the case was brought with the aim of settling political scores.

The Judge said it would be unjust to prosecute him for an offence which was allegedly committed nearly two and half decades ago, particularly when both the complainants and the accused contend that the relevant transactional documents may have been lost, misplaced or tampered with.

But the DPP appealed and Justices Alnashir Visram, Wanjiru Karanja and Otieno Odek ruled that there was no evidence of bias, when the DPP brought the charges.

He was then charged with four counts among them obtaining execution of a bank guarantee by false pretense, uttering a false document, forging a bank charge and giving false information to a police officer.

Before the Supreme Court, the politician said he could not get the evidence earlier because his office file was stolen and he had to retrieve them from the bank. He said the documents were only five letters and documents, which had a bearing to his trial.

WIN FOR KIBOS AS SUPREME COURT REJECTS TO HEAR POLLUTION DISPUTE FILED BY RESIDENTS.

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BY SAM ALFAN.

Three residents of Kajulu in Kisumu county have suffered a major blow after the Supreme Court dismissed their appeal that Kibos Distillers was polluting the environment

In the judgement, the Judges of the apex court upheld the objection by Kibos Distillers, Kibos Power and Kibos Sugar and Allied Industries that there was nothing in the petition by the trio, requiring the interpretation or application of the Constitution.

The six judge bench led by Chief Justice David Maraga agreed that the appeal by the residents does not raise issues of law or jurisprudence, which deserves to be addressed by the Supreme Court.

“The petition is hereby struck out save that, noting the nature of the matter, the Petitioners are at liberty to pursue their claims at the appropriate forum, taking guidance from this Judgment and that of the Court of Appeal,” the court said.

Early this year, the Court of Appeal overturned the decision by Justice Stephen Kibunja of the Environment and Land Court (ELC), directing the factory owners to get a new Environment Impact Assessments licenses, saying the court did not have the power to hear the petition.

CJ Maraga, his deputy Philomena Mwilu, Mohamed Ibrahim, Smokin Wanjala, Njoki Ndung’u and Isaac Lenaola however said the appellate court should have remitted back the matter to the appropriate institutions for deliberations, after finding the ELC court had no jurisdiction to hear the matter.

“It would seem that the ELC had failed to appreciate that there were properly constituted institutions that were mandated to hear and determine the issues, but instead chose to arrogate to itself the jurisdiction to hear and determine all the issues raised in the petition,” the Supreme Court judges said.

Bernard Ambuti Adega, Erick Ochieng and Bether Atieno Opiyo successfully argued Justice Kibunja held that the factories in Muhoroni sub-county were discharging raw effluent into the environment including the three surrounding rivers.

The Judge had ruled that the structures were erected without EIA study report was approved by the National Environment Management Authority (NEMA).

But the company, through Senior Counsel Tom Ojienda moved to the Court of Appeal and a bench of three judges overturned the decision.

The Appellate court ruled that the matter should have been handled by the National Environmental Tribunal and the National Environmental Complaints Committee.

The residents then sought to move to the Supreme Court an application which has been rejected.

MAN IN COURT OVER SH4.1 MILLION FRAUD.

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BY NT CORRESPONDENT.

A man has been charged before a Nairobi Court with obtaining construction services worth Sh 4.1million.

Bernard Ngugi Muita alias Professor Michael Mwachovi Mwachazo Waghalagu appeared before Milimani Senior Principal Magistrate Bernard Ochohi and pleaded not guilty to the fraud charges

He is accused that on the diverse dates between March 12 and May 31,2019 at Ngara Girls High School in Starehe constituency in Nairobi county jointly with others not before court obtained construction services worth Sh 4,130,644 from Nelson Kamau Karagu of Interlink Industries by purporting to be in position to pay for the said construction services on behalf of Ngara girls high school.

Prosecution accused him that on diverse dates between March 1 and May 31,2019 at Ngara girls high school with intent to defraud he falsely represented himself to be Michael Mwachovi Mwachazo Wachalgu a professor of education.

Ngugi is also accused that on May 19, at DCI Starehe office in Nairobi falsely identified himself as Professor Michael Mwachovi Mwachazo to police constable Collins Musiomi information he knew was false.

The accused further was charged with representing himself as the president of Dalm International Limited a company which is not registered by the registrar of companies.

He was released on a cash bail of He was released on a cash bail of Sh 500,000 or alternative bond of Sh1 million.

REPRIEVE FOR NAIROBI COUNTY ASSEMBLY MAJORITY LEADER AS COURT LIFTS SUSPENSION.

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BY NT CORRESPONDENT.

The High court has lifted a decision by the Nairobi County Assembly to suspend Majority Leader Abdi Ibrahim Hassan Guyo.

Guyo, the Matopeni Ward MCA had been suspended for one year after allegedly missing 11 consecutive sittings.

The Nairobi County Assembly Select Committee on Powers and Privileges found that Guyo had missed sittings between January 2020 and March 2020.

But after moving to court, the High Court suspended the decision and allowed the MCA unrestrained access to the assembly.

“For avoidance of doubt, the Petitioner shall have unrestrained access to the Assembly and its precincts and shall enjoy all privileges and benefits pertaining to the office of a member of the Nairobi City County Assembly pending the hearing and determination of his petition,” the court ruled.

Last month, Guyo got temporary orders stopping his suspension but the Assembly went ahead and suspended him. The committee also removed him from all committees.

In his ruling, Judge Weldon Korir said it was in the public interest to allow Guyo’s application belifted  allowed on the grounds that the residents of Matopeni will have no representation during the four months he will be out of the Assembly.

“He has indeed already suffered prejudice following his expulsion from the Assembly as a result of what he alleges is a flawed process,” the Judge noted.

In his view, the case before him calls for interrogation during the hearing of the petition because Guyo claims that there was no formal complaint regarding his alleged no-attendance of more than eight Assembly sittings.

However, the judge declined to find Speaker Beatrice Elachi to be in contempt of court for going ahead and suspending him from the assembly even though there was a court order barring her from making the decision.

INTERNATIONAL SCHOOL-RUNDA ORDERED TO CUT SCHOOL FEES BY 20 PERCENT.

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BY SAM ALFAN.

The High court has ordered a Nairobi based international school to slash 20 percent of third term fee.

This is after some aggrieved parents of SABIS International School, Runda rushed to court accusing the management of directing them to pay the entire fees for online classes.

Justice James Makau said parents of the school will only pay 80 percent of the fees, until the schools are re-opened.

“A conservatory order is hereby issued staying implementation of payment of full fees payable to the directors and the school” ruled Makau.

The management had insisted on full payment of the school fees but the parents, under initials SPG to protect the identity of their children, said the school has been unable to meet part of its bargain due to conditions arising out of Covid-19 pandemic.

In his ruling, the judge faulted the school decision to insist on full payment of the school fees when itself is unable to meet its part of the bargain due to conditions arising out of Covid-19 pandemic and when its unable to discharge its part of the agreement fully which is purely consumer rights as provided under consumer Act.

Further, Makau said that most schools contract are adhesive contracts and the parents have no choice nor say anything but must sign to have their children admitted to the school even when the same is unfavourable to the parents.

The parents argued that it was unfair to maintain full school fees when the management was unable to discharge its agreement fully.

The aggrieved parents, the school is under obligation to supply secondary and ancillary services such as accommodation, boarding facilities, auditorium, library, laboratory, transport and internet services.

The school additionally supplies textbooks, study material, notes, and other electronic materials to the students, all of which were no longer provided since the pandemic struck.

The school maintained that the contract between the parents and the school is a private contract and the court ought not to intervene in private matters.

The parents countered saying that in May, the Association of Private Schools, said in a letter to its members that any learning or activity during the period should be treated as a separate program or contract from normal school term. The contract, the Association added, should be made optional.

The Judge ruled that the parents had proved that they are justified in seeking the orders as regards educational activity or service rendered by the educational institution as provided by the Consumer Protection Act.

The court found that there is no doubt that students are direct consumer or beneficiaries of the service or facility provided by the directors of the schools, though all kinds of activities performed by the schools may not be classifiable as marketable service because of the nature of those particular services but it does not support the complete exclusion of the school from the scope of consumer protection laws.

Other than reduction of school fees, the parents also sought to compel the management to establish a parents’ teachers’ association as required by law.

Many private schools attempted to force parents to pay school fees to enable them survive during this Covid-19 time but parents declined citing economic hardship being experienced in the country.

IG ORDERED TO RESTORE MP’S BODYGUARDS.

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BY SAM ALFAN.

Inspector General of Police Hillary Mutyambai has suffered a big blow after the High Court ordered him to restore security officers guarding Kandara Member of Parliament Alice Wahome.

Justice James Makau ruled that it was illegal for the IG to withdraw Mp Wahome’s bodyguards without informing her the reason for the move.

“Inspector General is hereby issued directed and anyone acting under him to restore the security of the Petitioner without fail” judge ruled.

The judge also declared the action of the Inspector General to withdraw the security of the MP as illegal, unconstitutional and void.

Mutyambai was prohibited from withdrawing the security of the Petitioner without following the proper procedure.

The Judge further said there was also no evidence that the MP had committed any crime to warrant the withdrawal of her security officers.

“In this Petition, I find that there is no evidence of the petitioner(MP Wahome) having been accused of breaking any law nor has she been informed of any investigation being conducted against her; if any,” the Judge said.

Makuau added that the mere allegation that the MP committed an electoral offence by harassing an election official, without more explanation, was not sufficient.

Wahome told the court that she has been unable to discharge her functions to the people of Kandara and the country at large effectively, as a result of the withdrawal of her security.

She also said the move was meant to intimidate her to change her stand on bad governance and her political beliefs and affiliation.

The withdrawal was made following a communication by the police on January 20, 2020 that they will not provide security to VIPs who are involved or suspected to be involved in crime until they are cleared by court.

Through lawyer Stephen Gitonga, the MP said the decision is discriminatory in nature as all other MPs continue enjoying security provided by the National Police Service.

He argue that the decision threatens and exposes her to security risks as she has enjoyed security ever since being elected to Parliament in 2013.

Gitonga submitted that the MP has never been charged or informed of any investigation being conducted against her.

IG through Director of Operations Henry Borma said following the rise of reports implicating some VIPs and state officers in crime incidences and unlawful conduct, they reconsidered the privileges accorded to some VIPs.

The officer said Wahome committed an electoral offence by harassing an election officer, who was performing his official duties thereby causing a breach of peace.

ASSAULTED MLANGO KUBWA MCA WRITES TO POLICE IG SEEKING SACK OF FOUR OFFICERS.

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BY NT CORRESPONDENT.

Mlango Kubwa MCA wants senior police officers captured on camera assaulting her removed from office.

In a letter addressed to the Inspector General of Police Hillary Mutyambai, Mutheu wants the four officers the four police officers captured on camera viciously attacking her on Tuesday, held to account.

The MCA, who is admitted at Nairobi hospital, also wants the said officers removed from the force and charged with causing her grievous harm.

Through lawyer Cliff Ombeta, the MCA said she was attacked at her place of work on July 28, for no apparent reason.

“It is worthwhile to note that our client was within the precincts of her work place and it was a plenary day. She was not involved in any criminal activity and was within her rights to be where she was,” said Ombeta.

From videos making rounds on social media, the MCA was alone when she was attacked by the four male officers one of whom even choked and kicked her.

Ombeta said his client was nor armed, did not resist arrest, did not attack the said officer nor provoked them in any manner.

“One of the officers (senior) whose tag reads Mwaniki is also seen choking our client and kicking her viciously while she is on the floor,” the lawyer added.

According to Ombeta, the IG should accept liability and appreciate that he is not able to control rogue officers under his watch and command.

He further stated that if his client was in the wrong, the National Police Service has female officers who would have arrested her or taken any other legal step.

Ombeta also accuses the IG of failing the citizens of this country, failing to control his officers and condoning police brutality.

“We expect that you shall reveal the identities of the said officers and terminate their service,” the lawyer concludes.

MBOGO’S SISTER IN ALLEGED FAKE AVOCADO DEAL WRITES TO DPP, SAYS THE MATTER IS CIVIL.

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BY NT CORRESPONDENT.

Politician Steve Mbogo’s sister and her husband facing Sh 18.5 million fraud charges have written to the Director of Public Prosecution (DPP) Noordin Haji seeking review of the criminal file against them.

In the letter dated July 28,2020 seen by Nairobi Timez the couple Jennifer Mukonyo Mbogo and Nathan Loyd Ndung’u wants the DPP to request for the agreement they entered with Ezetel Limited the company they are alleged to have defrauded the millions of cash to clarify the same and part that shows the repayment period (if any).

The duo also accuse the DCI officers handling the case of harassing them and malicious incarceration.

Through lawyer Cliff Ombetta, the couple claims their company Agro-Veg Health Kenya Limited entered into an agreement with the complainant Ezetel Kenya Limited for the purpose of business.

“Please note that this was entirely commercial in nature with clear bonifide intentions,” says Ombeta in the letter.

The lawyer says his clients have been in the avocado export business for along time which has been their core business. Therefore the issue of “false pretenses” does not arise.

He also states that it is important for the DPP to ask from the DCI officers for the partnership agreements thereto for the purpose of carrying out such a business, source of financing and the contribution factors from the said partners.

They want the police to show proof of funding during the time of the alleged offence and how the financing of the Sh 18.5 million in question was done, whether it was given to them (couple), bank transfer or even personal loan.

According to Ombeta, the cheques referred to in the case were all post-dated therefore, not current as it is made to appear and were issued on 28th March. There is then no way his clients would have previously instructed the bank not to honour them.

“Our clients have proof that Sh 6.5 million was a personal and that one of the directors Melvin Ndung’u acknowledges having received Sh 1.4 million from the couple as profit in advance which again shows thus is not a criminal case but a civil matter,” the lawyer notes.

According to him, failing to take into consideration the circumstances of the business in these hard times was deliberate and calculated to frustrate his clients.

“We have communication from Harit Seth &Co. Advocates demanding Sh 25 million from our clients and blackmailing them that if the same is nor paid as soon as possible, the case against them shall turn in to a case of obtaining money by false pretenses,” says Ombeta.

The couple accuses officers by the names a Mr. Nderitu and Madam Njue of pressing them to give them title deeds of their business premises in Embakasi and the motor vehicles as security for the “loan”.

“This was clearly in bad faith and clearly points to an intended capture of our clients’ properties in duress by menaces,” says Ombeta.

He adds that the manner of arrest of his clients by Nairobi Area DCI officers was totally uncalled for in public by show of force that was totally unnecessary using arms to threaten citizens who were peaceful and unarmed and forcing them to lie on the ground in public. “This was intended to scare and harass them.”

Ombeta further accuses officer Nderitu of detaining his clients even after they were granted bond by the court on July 20,2020. The officer allegedly took the two back to the station and locked them up after the deposited a cash bail of Sh 200,000 each so as frustrate and intimidate them because he was unhappy with his clients’ being granted bail.

They also intend to sue officers Nderitu and Njue in their personal capacities for acting outside the limits of the law.

“Please do call for the file. This is an injustice to our client which has totally defamed them,” the lawyer concluded.

The letter also states that the couple intends to sue for defamation, mental torture and anguish, malicious incarceration and damages in terms of business lost

Mid this month the duo were t charged that on diverse dates between March 1 and April 1,2020 in Nairobi county, jointly being directors of Avoveg Health Kenya limited, conspired to defraud Ezetel Kenya Limited of Sh18,500,000.

The court heard that they falsely pretended that they were in a position to partner with them to finance avocado export business, a fact they knew was false.

The two were further accused that on the same dates, they obtained Sh18,500,000 from Ezetel Kenya limited by pretending that they were in a position to partner with them in financing of avocado export business.

They are also charged that on March 28, this year, with intent to defraud drew a cheque USD 9,990 for SBM bank account in favour of Ezetel limited when they had previously instructed the bank not honor the said cheque.

UNDERWRITER DIRECTED TO SETTLE CLAIM IN THEFT OF PROBOX WITHIN 30 DAY.

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BY SAM ALFAN.

Insurance appeals tribunal has ordered the Kenya Alliance Insurance Company ltd to settle an insurance claim it insured a motorist within 30 days.

In a ruling, the tribunal led by chairman Wambua Kilonzo upheld decision by Insurance Regulatory Authority (IRA) in a decision dated December 20, 2019 which found the Kenyan Alliance Insurance company was liable to honor the Insurance policy of John Mukuruma Wainaina, whose vehicle Probox KCN 896E was stolen.

“The Tribunal further orders that the appellant settles the insured’s claim in full within 30 days from the date of the delivery of the judgment and that evidence of the said settlement to be provided to the Tribunal within 7 days of such settlement of the claim by the appellant,” the Tribunal ordered.

Kilonzo, Martin Mithega, Thomas Koyier, Monica Micheke and Charles Kipkulei also directed that should there be failure by the underwriter to adhere to the order, IRA is at liberty to take action as may be appropriate under Insurance Act.

The underwriter had filed an appeal challenging IRA’s decision, which found them liable to pay the claim of Maina’s motor vehicle.

Maina had sued the insurance company after they failed to compensate him following theft of his motor vehicle in 2018.

The Insurance company declined the insured’s claim in a letter dated May 17,2017, the whole premium for the said policy was outstanding as at the theft of the said motor vehicle and therefore there was breach of the policy by the insured.

Being dissatisfied with the Insurance company decision, Maina filed a complaint with IRA.